N3838

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 575 OF 2009

IN THE MATTER OF APPLICATIONS
FOR EARLY RELEASE FROM CUSTODY
BY JOHN CARL ENDEKRA AND 14 OTHER PRISONERS OF LAKIEMATA CORRECTIONAL INSTITUTION
WEST NEW BRITAIN PROVINCE

Kimbe: Cannings J
2009: 9, 20, 21 October, 21 December

JUDGMENT

CRIMINAL LAW – sentencing – laws under which prisoners can be released from custody – whether National Court has power to order early release from custody – limited circumstances in which power may be exercised – difference between early release pursuant to an order of the Court and other forms of early release – Criminal Code, Section 19 – Parole Act 1991 – power of mercy – release on licence.

Fifteen prisoners applied to the National Court for early release from jail on various grounds, eg that they had served one-third of their sentence or paid compensation to the victim or the victim no longer wanted them imprisoned.

Held:

(1)	The National Court has no general power to order early release of any prisoner.

(2)	A prisoner will only be eligible for early release by virtue of an order of the National Court if the order under which the prisoner was sentenced expressly provides for early release.

(3)	Examples of such orders are where: (a) the court suspends a sentence but makes the suspended part of the sentence conditional on payment of compensation to a victim prior to release from custody; or (b) the court imposes a minimum term in custody after which the prisoner can apply for early release subject to having a satisfactory service record within the jail.

(4)	A prisoner who has served one-third of his or her sentence in custody is eligible to be considered for parole under the Parole Act 1991. The decision on whether a prisoner is granted parole is made by the Parole Board, not by the National Court.

(5)	Other authorities that have power to order early release are: the Governor-General, acting with and in accordance with the advice of the National Executive Council, after considering a report from the Advisory Committee on the Power of Mercy; and the Minister for Justice who may grant a prisoner a licence to be at large under Section 615 of the Criminal Code.

(6)	Of the 15 applications: one prisoner was approved for imminent release, one was approved in principle for release in March 2010 and 13 were refused.

(7)	Of the 13 applications refused, eight of the prisoners are eligible to be considered for parole and in respect of those prisoners the Parole Board has been ordered to report to the Court on its consideration for their parole.

Cases cited

The following cases are cited in the judgment:

Daniel Ronald Walus v The State (2007) SC882
Gibson Lulip v The State (2000) SC636
Re Release of Prisoners on Licence (2008) N3421
The State v Anton Towakra, John Towakra & Carl Mathew CR Nos 354-356 of 2008
The State v Charlie Kevin, Worex Woriu John & Demas Dano (2007) N3191
The State v George Tomeme CR No 920 of 2002, 24.08.07
The State v John Carl Endekra, Wilson Isaiah & Albert Martin Klembasa (2007) N3185
The State v Kevin Wakore (2007) N3222
The State v Nicodemus Badui CR No 683 of 2007, 17.08.07
The State v Raphael Walimini (2004) N2628
The State v Thomas Madi (2004) N2625

APPLICATIONS

This is a judgment in which the National Court gives reasons for its determination of applications for early release by 15 prisoners of a correctional institution.

Counsel

R Awalua, for the applicants
F Popeu, for the State

21 December, 2009

1. CANNINGS J: Fifteen prisoners at Lakiemata Jail, West New Britain, applied to the National Court for early release from jail on various grounds, eg that they had served one-third of their sentence or paid compensation to the victim or the victim no longer wanted them imprisoned.

2. Many prisoners believe that once they have served one-third of their sentence they can apply for early release or that they can have their sentences reconsidered by the National Court if they can show a change in circumstances. These are misconceptions that have developed over the years. Prisoners are not generally well informed of their rights, privileges and responsibilities. Last year I published a judgment that explained this area of the law in detail (Re Release of Prisoners on Licence (2008) N3421). However there is still a lot of confusion and ignorance.

WHAT IS 'EARLY RELEASE'?

3. This term refers to any situation in which a prisoner is released before their due date of release (DDR). The DDR is calculated after taking account of the remission of one-third of the sentence that most prisoners are entitled to under Section 120(1) (remission to be granted) of the Correctional Service Act, which states:

Subject to this section, the Commissioner [of the Correctional Service] shall grant to a detainee remission equal to one third of the period of sentence.

4. Early release can be granted in various ways:

•	by a Court order;

•	by the Parole Board;

•	by the Governor-General, acting with and in accordance with the advice of the National Executive Council, after considering a report from the Advisory Committee on the Power of Mercy;

•	by the Minister for Justice who may grant a prisoner a licence to be at large under Section 615 of the Criminal Code.

EARLY RELEASE UNDER A COURT ORDER

5. The critical point that all prisoners must understand is that the National Court has no general power to order early release of any prisoner. The Court can only order early release if the order under which the prisoner was sentenced expressly allows for it. Examples of such orders are where:

(a) the court suspends a sentence but makes the suspended part of the sentence conditional on payment of compensation to a victim prior to release from custody; or

(b) the court imposes a minimum term in custody after which the prisoner can apply for early release subject to having a satisfactory service record within the jail.

Orders of the type described in (a) are fairly common and have been made in two of the cases referred to in this judgment.

6. Those described in (b) are less common. The Supreme Court declared in Daniel Ronald Walus v The State (2007) SC882 that the National Court should not make such orders. In numerous cases in 2005 and 2006 I had made those sorts of orders, having taken the view that Section 19 of the Criminal Code allows this sort of flexibility to the National Court. The Supreme Court, however, reasoned that the National Court, having sentenced an offender is functus officio (its duties are discharged) and cannot impose a sentence that allows uncertainty as to how much time an offender has to spend in custody. It was held that the National Court has no power to provide for early release from prison, which amounts to usurpation of the powers of the Parole Board.

7. I am bound to follow what the Supreme Court decided and since Walus's case I have refrained from making such orders. However, the Supreme Court did not quash any of these orders other than the order for Daniel Ronald Walus so I have on a number of occasions heard applications for early release pursuant to the type of orders described in (b) above.

With those considerations in mind I will now address each of the 15 applications.

NOS 1, 2 & 3: JOHN CARL ENDEKRA, WILSON ISAIAH & ALBERT KLEMBASA

8. These three young men from Barema are serving sentences of five years each for armed robbery. They each have excellent institutional behaviour reports and are active members of the Catholic Church. Two are married with children and they are concerned about the welfare of their families. However, the order of 21 March 2007 under which they were sentenced makes no provision for suspension of any part of the sentence or early release (The State v John Carl Endekra, Wilson Isaiah & Albert Martin Klembasa (2007) N3185, Cannings J). Therefore the court has no power to order early release.

9. They are eligible to be considered for parole, however, as they have each served more than one-third of their sentence.

NO 4: CHARLIE KEVIN

10. This young man from Galai is serving a sentence of six years for armed robbery. He has an excellent institutional behaviour report and is an active member of the Catholic Church. He is married with children and is concerned about the welfare of his family. However, the order of 21 March 2007 under which he was sentenced makes no provision for suspension of any part of the sentence or early release (The State v Charlie Kevin, Worex Woriu John & Demas Dano (2007) N3191, Cannings J). Therefore the court has no power to order early release.

He is eligible to be considered for parole, however, as he has served more than one-third of his sentence.

NO 5: PAUL PEI

11. Originally from Southern Highlands Province he is one of Lakiemata Jail's longest-serving prisoners. He has been serving five sentences since 1997:

1	Possession of ammunition, 1997: 1 year (District Court)

2	Armed robbery, 1997: 13 years (Jalina J)

3	Escape, 2004: 5 years (Sakora J)

4	Escape, 2005: 5 years (Cannings J)

5	Escape, 2006: 5 years (Cannings J)

12. No part of the first two sentences was suspended or provided for early release. However, of sentence No 3, the Court suspended four years. For sentence Nos 4 and 5 the Court set minimum terms in custody of 1 year and 2 years respectively. The combined effect of these sentences (after taking account of the periods he was at large) is that the prisoner is eligible for early release on 22 March 2010.

13. He has a series of sound institutional behaviour reports that highlight that since his last escape in 2006 he is a 'changed person'. He is aged in his 40s and wishes on his release from prison to return to his village in the Southern Highlands to start life over again.

14. I will approve his application in principle and list it for rehearing in the March 2010 sittings of the National Court in Kimbe. I will need to be satisfied that there is nothing adverse to report on the prisoner in respect of the period from October 2009 to March 2010. If there is nothing adverse I will order his early release with effect from 22 March 2010 and impose conditions for the period of probation, including imposition of a community work program.

NO 6: GIBSON LULIP

15. He is serving a sentence of 25 years imprisonment imposed by Jalina J on 15 March 1999 for three offences: attempted robbery, robbery and unlawful use of a motor vehicle. He pleaded guilty to all offences that concerned an incident at Buvussi Mountain in 1998 in which an innocent person was killed by an armed gang of which the prisoner was a member. One of his co-accused is serving a life sentence at Boram Jail, East Sepik Province, for his involvement in these crimes (The State v Raphael Walimini (2004) N2628). Gibson Lulip's appeal against sentence was dismissed by the Supreme Court (Gibson Lulip v The State (2000) SC636).

16. He has a series of sound institutional behaviour reports that highlight that he is a changed person and is now a leader of the Seventh-Day Adventist Church group at Lakiemata Jail. In October 2008 he was reclassified as a low security prisoner. It appears that he has been co-operative with the Police and the Correctional Service ever since he surrendered after the incident, made early admissions and pleaded guilty.

17. However, the order under which he was sentenced makes no provision for suspension of any part of the sentence or early release. Therefore the court has no power to order early release.

18. He is eligible to be considered for parole, however, as he has served more than one-third of his sentence.

NO 7: NICODEMUS BADUI

19. This young man from Tamba is serving a sentence of four years for grievous bodily harm. He has an excellent institutional behaviour report and is an active member of the Catholic Church. He is married with two wives and five children and is concerned about the welfare of his families. He has presented a statutory declaration by the victim (who had two of his fingers cut off in the bushknife attack that led to the conviction) who says that he has reconciled with the prisoner and wants him to come back to the block where they live together.

20. However, the order under which he was sentenced makes no provision for suspension of any part of the sentence or early release (The State v Nicodemus Badui CR No 683 of 2007, 17.08.07, Cannings J). Therefore the court has no power to order early release.

21. He is eligible to be considered for parole, however, as he has served more than one-third of his sentence.

NO 8: GEORGE TOMEME

22. This prisoner, aged in his mid-30s, from Bola village in the Talasea area is serving a sentence of 12 years for rape. He has a sound institutional behaviour report. He is separated from his wife but is concerned about the welfare of his two children who are in the village.

23. The order under which he was sentenced suspended four years of the sentence on various conditions one of which is that he pay K1,000.00 compensation to the victim prior to release from custody (The State v George Tomeme CR No 920 of 2002, 24.08.07, Cannings J).

24. There is no evidence before the court that compensation has been paid. Also the period in custody required to be served before he is eligible for release has not elapsed. Therefore the court has no power at this stage to order early release.

25. I estimate that the period of his sentence that he has served in custody is:

•	Pre-sentence period in custody: 1 year, 4 months, 2 weeks, 5 days +

•	Period since date of sentence (24/8/07 to 21/12/09): 2 years, 3 months, 3 weeks, 3 days

•	= 3 years, 8 months, 2 weeks, 1 day.

26. He will be eligible to be considered for parole 3 months, 1 week and 6 days from today – in April 2010 – by which time he will have served 4 years in custody, that being one-third of his sentence of 12 years.

27. I estimate that he would be entitled to early release by order of the Court (upon proof of payment of compensation and subject to compliance with other conditions of his partially-suspended sentence) in mid-2011.

NO 9: KEVIN WAKORE

28. This prisoner, aged in his 30s, from Pangalu village in the Talasea area is serving a sentence of 12 years for murder. He has a sound institutional behaviour report. He has paid a substantial amount of compensation to the deceased's relatives. However, that was paid before he was sentenced and was taken into account as a mitigating factor when the court arrived at the moderate sentence of 12 years.

29. The order of 16 August 2007 under which he was sentenced suspended four years of the sentence on various conditions which do not include payment of further compensation (The State v Kevin Wakore (2007) N3222, Cannings J).

30. The period in custody required to be served before he is eligible for release has not elapsed. Therefore the court has no power at this stage to order early release.

31. I estimate that the period of his sentence that he has served in custody is:

•	Pre-sentence period in custody: 1 year +

•	Period since date of sentence (16/8/07 to 21/12/09): 2 years, 4 months, 5 days

•	= 3 years, 4 months, 5 days.

32. He will be eligible to be considered for parole 7 months, 3 weeks and 2 days from today – in August 2010 – by which time he will have served 4 years in custody, that being one-third of his sentence of 12 years.

33. As for the date he would be entitled to early release pursuant to the sentence of 16 August 2007, I estimate that this will be in late-2012.

NO 10: TIMOTHY MAKIS KAOGO

34. This man, aged 30, from Bamba village in the Talasea area is serving a sentence of five years imposed by Cannings J for escaping from lawful custody. He has a serious medical condition that has been diagnosed as peptic ulcer disease and recurrent appendicitis (per medical report by Dr Steven Yenmie, Medical Registrar, Kimbe General Hospital, 6 August 2009).

35. The order under which he was sentenced, dated 24 April 2009, suspended four years of the sentence on various conditions one of which is that he can only be released from custody by order of the National Court, so that the conditions of the suspended sentence are explained to him.

36. After taking account of the pre-sentence period in custody, the time to be served in custody was 7 months, 1 week, 5 days. That time expired on 7 December 2009. This prisoner is therefore eligible for early release.

37. I will order that he liaise immediately with the Probation Office and negotiate a community work program and other conditions of the suspended part of his sentence that take account of his medical condition.

38. Provided those things are sorted out, he will return to court in two days time when I will order his release from custody.

NO 11: THOMAS MADI

39. This prisoner, aged 40, from Mai village near Kimbe is serving a sentence of 12 years for rape. He has a sound institutional behaviour report and is an active member of the Catholic Church. He is married with six children and his wife states that life has been very difficult for her and the children since his imprisonment.

40. However, the order of 23 June 2004 under which he was sentenced makes no provision for suspension of any part of the sentence or early release (The State v Thomas Madi (2004) N2625, Sevua J). Therefore the court has no power to order early release.

41. He is eligible to be considered for parole, however, as he has served more than one-third of his sentence.

NO 12: GERARD APEAU

42. This prisoner, aged 37, is from Pomio, East New Britain but had been living at Banaule in the Hoskins area when he committed the offence of sexual touching of a child under the age of 12 years. The victim was his eight-year-old stepdaughter. He was sentenced by Cannings J on 27 March 2007 to six years imprisonment. He has a sound institutional behaviour report and is an active member of the Lakiemata Combined Fellowship Group. His wife – the mother of the victim – states that she and her family have made peace and reconciled with him and are ready to welcome him back into the community.

43. However, the order under which he was sentenced makes no provision for suspension of any part of the sentence or early release. Therefore the court has no power to order early release.

44. He is eligible to be considered for parole as he has served more than one-third of his sentence.

NOS 13, 14 & 15: ANTON TOWAKRA, JOHN TOWAKRA & CARL MATHEW

45. Anton and John Towakra are brothers. Anton is aged 29 and John is 37. Carl Mathew, aged 25, is a close relative. They were convicted after a trial of two arson offences committed near their home at Galai 2 in 2007.

46. They are serving sentences of 10 years each, seven years of which was suspended on payment of a total of K16,000.00 compensation to the victims. (The State v Anton Towakra, John Towakra & Carl Mathew CR Nos 354-356 of 2008, 31.03.09, Cannings J). That amount of money has been paid into the National Court Trust Account and is available for payment to the victims. Each prisoner has a sound institutional behaviour report.

47. The order under which each prisoner was sentenced does not allow for early release upon payment of compensation. The order says that they can only be released after (a) paying compensation and (b) serving three years in custody. They have complied with (a) but not (b). So they still have to serve their prescribed time in custody. They are not yet eligible for early release.

48. I estimate that they will be entitled to early release (after remission of one-third of their period in custody and subject to compliance with other conditions of the partially-suspended sentence) in early-2011.

PAROLE

49. I reiterate what I said earlier in this judgment: a prisoner can only be granted parole (a form of early release from custody) by the Parole Board – not by the National Court. The National Court can only grant early release if the order under which the prisoner was sentenced expressly provides for it.

50. A prisoner is eligible for parole after serving one-third of the sentence. The law on parole is set out in the Parole Act 1991. The key provisions are in Part IV (parole) of the Act, Sections 17 to 28. I set them out in full in the appendix to this judgment.

51. I will request that this judgment be published widely in jails so that prisoners will come to know how the parole system works.

52. The system works this way:

•	a prisoner becomes eligible for parole upon serving one-third of their sentence or, if they have been sentenced to life imprisonment, ten years (Parole Act, s 17);

•	at least six months before the prisoner is eligible for parole, the Commissioner of the Correctional Service notifies the Parole Board and notifies the prisoner that this has been done (s 18);

•	the Commissioner and the Chief Parole Officer prepare separate reports on the prisoner regarding the suitability of the prisoner for parole (s 20);

•	the matter goes to the Parole Board, which considers the reports and decides whether to grant or refuse an order for parole and, if parole is granted, the conditions to be imposed on the prisoner or parolee (s 21).

53. In the present case I have remarked that a number of the prisoners, although not eligible for early release under an order of the National Court, are eligible to be considered for parole as they have served one-third of their sentence.

54. I will order the Parole Board to report to the Court on the status of the consideration for parole of those prisoners.

ORDER

(1) The applications for early release from custody by the following prisoners are refused:

(a) John Carl Endekra, Wilson Isaiah & Albert Klembasa;

(b) Charlie Kevin;

(c) Gibson Lulip;

(d) Nicodemus Badui;

(e) George Tomeme;

(f) Kevin Wakore;

(g) Thomas Madi;

(h) Gerard Apeau;

(i) Anton Towakra, John Towakra & Carl Mathew.

(2) The application for early release from custody by Paul Pei Peni is approved in principle, subject to the application being re-made in March 2010 and there being no adverse report on the prisoner concerning the period from October 2009 to March 2010.

(3) The application for early release from custody by Timothy Makis Kaogo is granted subject to the prisoner liaising with the Probation Office and negotiating a community work program and other conditions of the suspended part of his sentence, which are to be endorsed by the Court at a hearing on 23 December 2009.

(4) The Parole Board shall report to the Court on the status of its consideration for parole of the following prisoners who have been determined by the Court to be eligible for parole:

(a)	John Carl Endekra, Wilson Isaiah & Albert Klembasa;

(b)	Charlie Kevin;

(c)	Gibson Lulip;

(d)	Nicodemus Badui;

(e)	Thomas Madi; and

(f)	Gerard Apeau.

Judgment accordingly.

______________________________________________
Paul Paraka Lawyers: Lawyers for the Applicants 
Public Prosecutor: Lawyer for the State